Restoring the Rule of Law to Public Administration: What Frank Goodnow Got Right and Leonard White Didn't

• Published date: 01 September 2009
• Date: 01 September 2009
• DOI: http://doi.org/10.1111/j.1540-6210.2009.02030.x
• Author: Laurence E. Lynn

Restoring the Rule of Law to Public Administration 803

Laurence E. Lynn, Jr.

University of Texas

Restoring the Rule of Law to Public Administration: What

Frank Goodnow Got Right and Leonard White Didn’t

A Senior–Junior

Academic Ex-

change: Bringing

Public Law

Back into Public

Administration

Laurence E. Lynn, Jr., is the Sid

Richardson Research Professor in the

Lyndon B. Johnson School of Public Affairs

at the University of Texas, a professor of

public management at the Manchester

Business School, and the Sydney Stein Jr.

Professor of Public Management Emeritus

at the University of Chicago. His research

is concerned with public management

theory and research methods. His most

recent books are

Public Management: Old

and New,

Madison’s Managers: Public

Administration and the Constitution

(with

Anthony M. Bertelli), and a textbook,

Public Management: A Three Dimensional

Approach

(with Carolyn J. Hill). For his life-

time contributions to public administration

research and practice, he has received the

John Gaus, Dwight Waldo, Paul Van Riper,

and H. George Frederickson awards.

E-mail: llynnjr@gmail.com

[T]his largely benign neglect

of the rule of law undermines

the legitimacy and usefulness of

a profession that aspires to be

indispensable to constitutional

governance.

Although the rule of law is universally regarded as a

fundamental principle of democratic governance, the

f‌i eld of public administration continues to exhibit

the “anti-legal temper” that emerged in the 1920s,

when Leonard White’s managerialism largely displaced

Frank Goodnow’s emphasis on the intimacy of law

and administration. Although administrative law is a

distinguished subf‌i eld of scholarship and practice within

public administration, the consensus view within the

profession seems to be that law is one of many constraints

on administrative discretion rather than its source, a

challenge to administrative leadership rather than its

guiding principle. In addition to unacceptably narrowing

the range of values infusing public administration, such

a view undermines the profession’s ability to contribute

to the design of our governance arrangements at a time

when constitutional institutions are being seriously

challenged. To fulf‌i ll its constitutional role, public

administration must commit itself to the rule of law as

an institution that secures its legitimacy.

Virtually everyone within the mainstream of

public administration would agree that “a

civilized society should be one of laws, not

of the whims of those who govern” (Stone 1998,

2010).  e rule of law is widely held to be a bedrock

principle of democracy. A distinguished subf‌i eld of

scholarship, abetted by colleagues in political philoso-

phy, explicates its meaning and signif‌i cance for the

study and practice of administration (Cooper 2000;

Feldman 2003; Lee and Rosenbloom 2005; Rohr

1986; Rosenbloom 2003; Rosenbloom and O’Leary

1997; Shapiro 1994; Spicer 1995). Although argu-

ably f‌l awed, our Constitution

is acknowledged to be not

only an original contribution

to democratic governance but

also an enduring expression of

American values.

Yet public administration

scholars, teachers, and reformers

have long evinced what Dwight

Waldo called an “anti-legal temper” (Waldo 1984,

80; see also Bertelli and Lynn 2006). Many leading

texts and treatises give short shrift to the relationship

between law and administration. John Kirlin’s (1996)

seven “big questions” of public administration in a de-

mocracy make no mention of the rule of law, and an

essay on great issues in administrative decision making

notes only that “there are instances in which legal or

statutory constraints must be considered” (McGowan

1988, 255).  e National Association of Schools of

Public Af‌f airs and Administration (NASPAA) curricu-

lum standards refer only brief‌l y to “legal institutions

and processes,” and few NASPAA-approved programs

require or even of‌f er the study of law (O’Leary 2005).

As I see it, a broad consensus within public admin-

istration appears to hold that law is one of many en-

vironmental constraints on administrative discretion

rather than its source, a challenge to administrative

leadership rather than its guiding principle, a neces-

sary element of accountability but not a suf‌f‌i cient one.

Many who pay it respect tend to treat the rule of law

as a matter of legality or of rulemaking and enforce-

ment, a topic of lesser importance to the f‌i eld than,

for example, organization and management, public

policy planning and analysis, budgeting and f‌i nance,

human resources administration, and ethics.

In this essay, I argue that this largely benign neglect

of the rule of law undermines the legitimacy and

usefulness of a profession that aspires to be indispen-

sable to constitutional governance. Phillip J. Cooper

is correct when he argues that the “unwillingness of

public administration to attend

to legal issues [has] resulted in

serious dif‌f‌i culties for the law of

administration and for public

administration more gener-

ally” (1988, 577). “By ignoring

[administrative law], public

administration contributes to its

own powerlessness,” Anthony

Bertelli and I argue (2006, 73).